United States v. Cabrera-Ochoa

          ORDER GRANTING MOTION TO DISMISS INDICTMENT [RE: ECF39]

          BETH LABSON FREEMAN, United States District Judge.

         Defendant Christian Cabrera-Ochoa is charged with one count of violating 8 U.S.C. §§ 1326(a)-(b), which prohibit illegally re-entering the United States after being removed or deported. See Indictment, ECF 8. Cabrera-Ochoa moves to dismiss the indictment on the grounds that his prior removal orders cannot serve as predicates for this illegal reentry prosecution. See Mot. at 1, ECF 39. The Court finds that Cabrera-Ochoa has satisfied the requirements for collaterally attacking both his 2007 and 2008 removal orders under 8 U.S.C. § 1326(d), and GRANTS his motion to dismiss.^[1]I. BACKGROUND A. Childhood and Adolescence Cabrera-Ochoa was born on Feb. 3, 1990, in Mexico. See ___^[2]; Cabrera-Ochoa Decl.¶ 2, Def.'s Ex. A, ECF 39-1. He has never had a relationship with his father, and after Cabrera-Ochoa's birth, his mother left him in Mexico and came to the United States. See Cabrera-Ochoa Decl. ¶ 2, Def.'s Ex. A. When Cabrera-Ochoa was five or six years old, he came to the United States with his mother's friends, using a fake passport. See Informal Transcript of May 24, 2007 Removal Hearing at 9-10, 10 Def.'s Ex. O, ECF 41 ("2007 Transcript").

         Once Cabrera-Ochoa rejoined his mother, his life was marked by abuse and neglect: his mother was physically, verbally, and emotionally abusive, and frequently beat him with cables and belts. See Cabrera-Ochoa Decl. ¶ 5, Def.'s Ex. A, ECF 39-1.___ I In addition to the physical abuse, Cabrera-Ochoa's mother often kicked him out of their home, told him she hated him and regretted having him, and threatened to hurt him and burn his hands on the stove. See Cabrera-Ochoa Decl. ¶ 7, Def.'s Ex. A, ECF 39-1. Cabrera-Ochoa was so scared of his mother that he would run away from home for two to three days at a time. See Id. ¶5. When he was twelve, he gravitated toward gangs for support, occasionally staying with an older man that made space in his house for runaway children. See Id. at ¶ 8.

         _________

         ___ The situation improved somewhat in late 2005 and early 2006.___ 2007 Transcript at 13, Def.'s Ex. O, ECF 41.___ One day later-and just ten days after Cabrera-Ochoa's seventeenth birthday-ICE served him with a Notice to Appear ("NTA"), on Feb. 13, 2007. See Feb. 13, 2007 Notice to Appear at 1, Def.'s Ex. M, ECF 39-1 ("2007 NTA").

         B. 2007 Removal Proceedings

         The 2007 NTA alleged that Cabrera-Ochoa was removable under Section 212(a)(6)(A)(i) of the Immigration and Nationality Act because he was not a United States citizen or national; was a native and citizen of Mexico, entered the United States at an unknown location, and was not then admitted or paroled after inspection by an Immigration Officer. See 2007 NTA at 1, Def.'s Ex. M, ECF 39-1. During the removal proceedings, Cabrera-Ochoa was taken to Indiana and held in an Office of Refugee Resettlement facility for over three months, until he had a removal hearing on May 24, 2007.

         At the removal hearing, the immigration judge ("I J") conducted a group hearing with Cabrera-Ochoa and two other boys, and then an individual hearing. See 2007 Transcript, Def.'s Ex. O, ECF 41. During the group hearing, the IJ briefly confirmed that the respondents had received copies of their NTA; asked if they had seen a Know Your Rights presentation; and checked if they had attorneys. See Id. at 1-6. When the respondents said that they did not know if they had lawyers, the IJ told them that a lawyer from the National Immigration Justice Center could talk to them, but would not be available until another day. See Id. at 3. She asked if any of the respondents wanted to continue their cases so that they could have time to meet with the lawyer, and none of them did. See Id. at 3-4.

         The IJ then held an individual hearing with Cabrera-Ochoa, where she reviewed the allegations in the NTA. Crucially, she asked about his entry into the United States, and Cabrera-Ochoa said that he "used a passport with different names." Id. at 10. In a moment of apparent distraction, however, the IJ found that Cabrera-Ochoa had admitted to the allegation of entering without being inspected or admitted. See Id. at 11, 17. She informed him that "it [didn't] seem to [her] that there's any relief from removal besides perhaps um voluntary departure." Id. at 12. She then questioned him about his juvenile criminal history and his gang activities. Id. at 12-16. The Government stated that it "would oppose voluntary departure, " in part because of Cabrera-Ochoa's "gang affiliation and membership issues." Id. at 16. The IJ, however, gave Cabrera-Ochoa credit for being "honest" with her and telling her "the truth about [his] gang affiliation, " and granted him voluntary departure. Id. At no point did the IJ raise the possibility of eligibility for Special Immigrant Juvenile Status ("SIJS"), a form of immigration relief available for abused, abandoned, or neglected minors, despite Cabrera-Ochoa's youth, long wardship history, and his testimony about his difficult relationship with his mother. See Id. at 13.

         After the hearing, counselors at the ORR juvenile detention facility spoke with Cabrera-Ochoa about the voluntary departure he had received. See Cabrera-Ochoa Decl. ¶ 15, Def.'s Ex. A, ECF 39-1. Cabrera-Ochoa did not understand what voluntary departure was or why it might be helpful for him, and the counselors told him not to use his money or his aunt's money to pay for his fare to Mexico, because either way, he was getting deported. See Id. The counselors told him to save any money his aunt sent him so that he could use it in Mexico. See Id. Cabrera-Ochoa then received some money from his aunt and asked to be deported. See Id. at ¶¶ 15-16.___

         C. Nov. 2008 Removal Proceedings

         After being deported to Mexico, Cabrera-Ochoa was taken to a group home in Ciudad Juarez until his mother was found. See Cabrera-Ochoa Decl. ¶ 17, Def.'s Ex. A, ECF 39-1. He stayed with her on and off for a few months, but she was not supportive of him. See Id. Sometime in 2008, Cabrera-Ochoa returned to the United States. See Sept. 4, 2008 Notice to Appear, PL's Ex. A, ECF 48-1. On Sept. 1, 2008, he was arrested for vehicle theft. See Rap Sheet at 6, Def.'s Ex. K, ECF 39-1. ICE served him with a Notice to Appear shortly afterward. See 2008 NTA, PL's Ex. A, ECF 48-1. While removal proceedings were pending, Cabrera-Ochoa was arrested again and charged with participating in a criminal street gang, promoting a criminal street gang, possession of a dangerous weapon, and possession of stolen property, but all charges were dismissed. See Rap Sheet at 6, Def.'s Ex. K, ECF 39-1. ICE then served a second Notice to Appear on Oct. 17, 2008. See Oct. 17 2008 Notice to Appear, Def.'s Ex. T, ECF 39-1.

         Cabrera-Ochoa received a hearing before an IJ in November 2008, and this hearing, like the previous year's, consisted of a group hearing and an individual hearing. At the group hearing, the IJ verified that each respondent had received a Notice to Appear and a copy of the EOIR list of free legal service providers. See Informal Transcript of Nov. 6, 2008 Removal Hearing at 1-3, Def.'s Ex. V, ECF 39-1 ("2008 Transcript"). The IJ explained the right to counsel, the right to appeal, and other procedural rights. See Id. at 4-6. In Cabrera-Ochoa's individual hearing, the IJ asked if Cabrera-Ochoa wanted time to find an attorney, and Cabrera-Ochoa declined. See Id. at 6. The IJ then reviewed the allegations in the Notice to Appear and asked Cabrera-Ochoa if they were true. See Id. at 7-8. The IJ also asked Cabrera-Ochoa about his previous removal proceedings, and whether he had previously been charged with entering without being inspected or admitted. See Id. at 8. Cabrera-Ochoa said, "Yes." Id. The IJ then stated that because Cabrera-Ochoa had previously received voluntary departure, he could not receive it again, and there appeared to be no other relief available. See Id. The IJ found that Cabrera-Ochoa was removable and asked if Cabrera-Ochoa wanted to appeal his decision. See Id. at 8-9. Cabrera-Ochoa's response is unintelligible on the audio recording, but he appears to have indicated that he did not want to appeal, and so he was ordered removed. See Id. at 9; Order of the Immigration Judge, I Def.'sEx. W, ECF39-1.

         D. Dec. 2008 and 2014 Removal Proceedings

         In December 2008 and August 2014, Cabrera-Ochoa was removed pursuant to reinstatements of the Nov. 6, 2008 removal order. See Notices of Intent/Decisions to Reinstate Prior Order, Def.'s Ex. X, ECF 39-1.

         E. Current Indictment

         Cabrera-Ochoa now is charged with violating 8 U.S.C. §§ 1326(a), (b) by illegally reentering the United States without the permission of the Attorney General or the Secretary of Homeland Security. See Indictment, ECF 8. He moves to dismiss this charge on the ground that both his 2007 and 2008 removal orders were unlawful and cannot be the predicate for the Section 1326 illegal reentry charge.

         II. LEGAL STANDARD

         "For a defendant to be convicted of illegal reentry under 8 U.S.C. § 1326, the Government must establish that the defendant left the United States under order of exclusion, deportation, or removal, and then illegally reentered." United States v. Raya-Vaca, 111 F.3d 1195, 1201 (9th Cir. 2014) (internal quotation marks and citation omitted). "A defendant charged under § 1326 has a due process right to collaterally attack his removal order because the removal order serves as a predicate element of his conviction." Id. (internal quotation marks and citation omitted).

         8 U.S.C. § 1326(d) sets forth three requirements for collaterally attacking the underlying deportation order in a Section 1326 case. The defendant must show that he or she (1) exhausted administrative remedies; (2) was deprived of the opportunity for judicial review, and (3) the entry of the order was fundamentally unfair. See Raya-Vaca, 111 F.3d at 1201 (citing 8 U.S.C. § 1326(d)). A defendants can establish the first two requirements by showing that he or she was denied judicial review of the removal proceedings in violation of due process, or by "showing that immigration officials in the underlying removal proceeding violated a regulation designed to protect an alien's right to judicial review." United States v. Gomez, 757 F.3d 885, 892 (9th Cir. 2014). To satisfy the third requirement, the defendant bears the burden of establishing both that the deportation process violated his or her due process rights and that the violation caused prejudice. See Raya-Vaca, 111 F.3d at 1201-02.

         III. DISCUSSION

         This case involves two separate removal proceedings, each of which raises significant due process concerns. The Government states that it will rely only on the 2008 deportation order as a basis for this Section 1326 prosecution and will not rely on the 2007 removal.^[3] See Opp. at 1, ECF48. The Court nonetheless must assess the validity of both immigration proceedings, however, because the validity of the 2008 deportation depends on the validity of the 2007 removal proceedings. The Court will first make findings of fact about the 2007 proceedings, then determine whether Cabrera-Ochoa waived his right to appeal the 2007 and 2008 orders, and then address the collateral Section 1326(d) attacks on the 2007 and 2008 orders.

         A, Findings of Fact Regarding 2007 Removal Proceedings

         1. Cabrera-Ochoa Did Not Enter Without Inspection

         The Court finds that when Cabrera-Ochoa first came to the United States, he did not enter without inspection. The Court finds that Cabrera-Ochoa was inspected and admitted on a false passport. The only evidence on this issue is Cabrera-Ochoa's own testimony.

         At the 2007 removal hearing, the IJ asked Cabrera-Ochoa, "So when you came to the United States, did you come with [your mother]? Who did you come to the U.S. with? Anybody?" 2007 Transcript at 10, Def.'s Ex. O, ECF 41.

         Cabrera-Ochoa answered, "Some, like my mom's friends, I don't know, I don't really \ know, I used a passport with different names." Id.

         Cabrera-Ochoa's statement that he "used a passport with different names" indicates that he was inspected and admitted to this country, because there would have been no need for a passport if he had entered without inspection. Despite this testimony, however, the IJ found that Cabrera- j Ochoa had admitted the fourth factual allegation in his Notice to Appear, which alleged that after entering the United States, Cabrera-Ochoa "[was] not then admitted or paroled after inspection by an Immigration Officer." 2007 Transcript at 11, 17, Def.'s Ex. O, ECF 41; 2007 NTA at 1, Def.'s Ex.M, ECF39-l.

         The Government argues that the IJ correctly found that Cabrera-Ochoa had entered without inspection, because "one can infer that the judge determined that defendant's testimony was not credible." Opp. at 9, ECF 48. Cabrera-Ochoa argues that there is no basis to conclude that the IJ discounted his testimony, and suggests that she "either did not hear what he said, or forgot what he said, or did not realize its legal significance." Reply at 8, ECF 49.

         Nothing in the record suggests that the IJ found Cabrera-Ochoa's testimony to be not credible. She did not comment on his testimony about how he entered the country and she did not make an explicit adverse credibility finding or even suggest that she found him to be not credible, on this issue or any other. Indeed, later in the hearing, the IJ questioned Cabrera-Ochoa about his gang history, and after he answered, she said, "Christian, I have to give you credit for something.

         You were honest at least with meSo at least you told me the truth about your gang affiliation." 2007 Transcript at 16, Def.'s Ex. O, ECF 41. The IJ was able to observe Cabrera-Ochoa and assess his credibility, and this is the only statement she made about his credibility. Given that she found him to be credible during one part of his testimony, this Court will not infer that she found him to be not credible in another part, when nothing in the record suggests that. In the absence of any evidence contradicting Cabrera-Ochoa's testimony about his mode of entry or any suggestion that the IJ found his testimony to be not credible, the Court finds that Cabrera-Ochoa entered on a false passport and that the LPs finding of entry without inspection was simply a mistake.

         2. ORR Staff Dissuaded Cabrera-Ochoa From Voluntarily Departing

         At the end of the 2007 hearing, the IJ granted Cabrera-Ochoa voluntary departure. See 2007 Transcript at 18, Def.'s Ex. O, ECF 41; Order of the Immigration Judge, Def.'s Ex. Q, ECF 39-1. The IJ also granted him two weeks to obtain the money necessary for voluntary departure. See 2007 Transcript at 18, Def.'s Ex. O, ECF 41. While Cabrera-Ochoa was being detained after his hearing, however, counselors at the ORR juvenile detention center dissuaded him from voluntarily departing. See Cabrera-Ochoa Decl. ¶ 15, Def.'s Ex. A, ECF 39-1. Cabrera-Ochoa declares,

The counselors told me not to use my own money or my aunt's money to pay for my fare back to Mexico because either way I was getting deported to Mexico. The counselors told me to save any money that my aunt ...